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COMMONS AMENDMENTS

14

Clause 12, page 9, line 28, at end insert ("to which the proceedings relate")


15

Page 9, line 29, leave out from beginning to ("his") in line 30 and insert ("and for this purpose proceedings, or a part of proceedings, are funded for an individual if services relating to the proceedings or part are funded for him by the Commission as part of the Community Legal Service.


(1A) In assessing for the purposes of subsection (1) the financial resources of an individual for whom services are funded by the Commission as part of the Community Legal Service,")
16

Page 9, line 33, leave out ("that") and insert ("subsections (1) and (1A)")


17

Page 9, line 33, leave out ("cases in which services have been") and insert ("relation to proceedings in which services are")


18

Page 9, line 38, leave out ("the services were funded,") and insert ("services are funded by the Commission as part of the Community Legal Service,")


19

Page 9, leave out lines 42 and 43


20

Page 9, line 46, at end insert--


("(da) requiring the payment by the Commission of the whole or part of any costs incurred by a party for whom services are not funded by the Commission as part of the Community Legal Service,")
21

Page 10, line 2, leave out ("such a party") and insert ("a party for whom services are so funded")


22

Clause 13, page 10, line 15, leave out subsection (2)


23

Page 10, line 36, leave out subsection (4) and insert--


("( ) The Commission shall fund services as part of the Criminal Defence Service in accordance with sections 14 and 15.")
24

Page 10, line 44, at end insert--


("(5A) The Commission may charge--
(a) for accreditation,
(b) for monitoring the services provided by accredited persons and bodies, and
(c) for authorising accreditation by others;
and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.")
25

Page 10, line 46, leave out ("subsection (5)") and insert ("subsections (5) and (5A)")


26

Clause 14, page 11, line 5, leave out ("in such other circumstances as the Lord Chancellor may prescribe") and insert ("involved in criminal investigations in such other circumstances as may be prescribed;


and for this purpose "criminal investigations" means investigations relating to offences or to individuals convicted of an offence.")

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 14 to 26, which have already been spoken to under Amendments Nos. 4, 7 and 13.

Moved, That the House do agree with the Commons in their Amendments Nos. 14 to 26.--(The Lord Chancellor.)

On Question, Motion agreed to.

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COMMONS AMENDMENT

27

Clause 14, page 11, line 18, after ("assistance,") insert--


("( ) itself providing advice or assistance,")

MOTION MOVED ON CONSIDERATION OF COMMONS AMENDMENT No. 27

27A

That the House do disagree with the Commons in their Amendment No. 27.

Lord Thomas of Gresford: My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 27. I shall speak also to Motions Nos. 28A and 30A.

All of the arguments about the criminal defence service have been canvassed exhaustively. I hope that your Lordships will forgive me if I do not go over the territory explored so widely at Second Reading, Committee and Report stages. I shall summarise my argument.

First, in an adversarial system, it is absolutely fundamental that a defendant should have full confidence that his legal representatives are genuinely independent. Secondly, in high-profile cases in particular the employed public defender lawyer may be unwilling to take a stand--as is frequently necessary--and criticise the Government, the Crown Prosecution Service, the police and so on. It is essential to the administration of justice that there be fearless advocacy on the part of an accused person.

Thirdly, if only limited resources are available to the public defender system, fewer and lower-paid lawyers will provide a poorer quality of service. The necessary work of tracing witnesses and instructing experts will not be carried out if budget limits are exceeded. By contrast, the resources of the prosecution in investigations through the police are unlimited in respect of individual cases. Consequently, the proposals will fundamentally shift the balance between the prosecution and the defence that exists under our system.

I have no doubt that the word "indignation" is written in large letters on the noble and learned Lord the Lord Chancellor's brief as he leaps to the defence of a class of persons--namely, public defenders--who have not yet been recruited. How dare I suggest that they will not employ professional standards and so on? But if the Government think that people employed for a fixed salary for fixed hours will put the same effort into a case that independent counsel and solicitors do at present, then they do not understand the realities of the criminal Bar.

I shall give a small instance. Tomorrow I shall go to a remand centre. It will take me two hours to get there. When I arrive I will be searched, my shoes will be taken from me and my coat will be taken from me. They will be put through a machine and any papers I may have on me will be removed if they do not appertain to the case. Recently, for example, I had a bill from the House of Lords Refreshment Department confiscated in case it gave the inmates of the prison I was in some notion or inkling of the bill of fare in your Lordships' House.

14 Jul 1999 : Column 413

These are the indignities that independent counsel are prepared to go through, and to spend the time. I should add that, under the graduated scheme, I will not be paid for a whole day's work, because it will take me two hours to get home. For that reason, I do not see that this level of service will ever be provided by a salaried defender service such as is proposed.

I do not believe either that the proposal will achieve the purposes for which it has been put forward; namely, the saving of money. I do not believe it has ever been pretended that it will improve the quality of justice to have a public defender system. Increases in the costs of defending criminal cases are, at least by implication, frequently put down to the activities of greedy lawyers trying to up their fees. What is never put into the reckoning is the cost of the measures which have been developed to improve the speeding-up of justice, a very necessary aim. In the old days of the assizes one walked into court and one did the case. Today we have systems of primary discovery, defence statements, secondary discovery, plea and directions hearings, public interest immunity applications, preliminary hearings on points of law, and frequently consultation with the client at various stages is essential. That is all commendable, but it is not quick and it certainly is not cheap. It costs time and money.

A further fundamental objection to the criminal defence service, to which I have referred on previous occasions, is the concept that a nationwide service will be set up with offices all over the country and that a defendant will have the right to choose whether he accepts the state service or whether he goes on legal aid to an independent legal representative. The idea that the choice will be made in favour of the state defence service is in my view ludicrous, and I do not see such a choice remaining very long for a defendant. We will be in a kind of "signs of the Zodiac" situation described by the noble Baroness, Lady Kennedy, at Second Reading.

We would have no objection if there were parts of the country where there were no independent solicitors. I know of none, but if that should be so, let there be a public office, but only in that very limited kind of circumstance. I do not believe that a public defender system can ever match the efficiency and cost-effectiveness of the competitive, independent Bar where ability and hard work are the ultimate criteria.

No nationalised industry has ever proved itself as efficient as the private sector. Hence, in all fields other than this one, New Labour has accepted and acquiesced in privatisations carried out by the previous government. Indeed, even in the Bill the purpose of having contracts is to increase competitive tendering between solicitors. But here, a state nationalised service of defending is being set up. I do not believe that that is right in principle. I do not believe that it is practical, and I believe that it will fail. I beg to move.

14 Jul 1999 : Column 414

Moved, That the House do disagree with the Commons in their Amendment No. 27.--(Lord Thomas of Gresford.)


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